EPA has released a draft strategy addressing the impact of herbicides on federally endangered species in a bid to streamline legally required — but often lengthy — consultations with the U.S. Fish and Wildlife Service.
EPA is combining population-level protections with a menu of mitigation measures to reduce species’ exposure caused by spray drift, runoff and erosion.
“The proposed mitigations reflect measures that can be readily, and are often already, implemented by growers and identified by pesticide applicators,” the strategy says, adding that the plan “is structured to provide flexibility to growers to choose mitigations that work best for their situation.”
“This strategy reflects one of our biggest steps to support farmers and other herbicide users with tools for managing weeds, while accelerating EPA’s ability to protect many endangered species that live near agricultural areas,” said Jake Li, deputy assistant administrator for pesticide programs in EPA's Office of Chemical Safety and Pollution Prevention.
“EPA’s pesticide program has been unable to keep pace with its ESA workload, resulting not only in inadequate protections for listed species but also successful litigation against the agency that has increased in frequency in recent years,” the strategy says. “Historically, it can take between 4-12 years of analysis and consultations with the Fish and Wildlife Service and National Marine Fisheries Service in order to meet ESA obligations for a pesticide.”
The strategy focuses solely on species listed by the Fish and Wildlife Service.
Even if EPA completed those consultations “for all of the pesticides that are currently subject to court decisions and/or ongoing litigation, that work would take until the 2040s, and even then, would represent only 5% of EPA’s ESA obligations,” the strategy said.
In April 2022, EPA released a workplan to address the overarching issues of interagency consultation required by the ESA. The agency's failure to complete consultations on listed species has been criticized by the courts, as in a December 2022 decision from the 9th Circuit Court of Appeals concerning the insecticide sulfoxaflor that said EPA was “engaging in a whack-a-mole strategy for complying” with the Endangered Species Act.
It “does little to comply with the law and then devotes resources once it has been sued – and then this process repeats itself. Parties should not have to file a lawsuit to compel EPA to follow the law,” the court chided.
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Once finalized, the proposed strategy “would ensure herbicides with similar characteristics have consistent mitigations, creating a level playing field,” according to the document. “In addition, because the strategy would establish a consistent approach for identifying the need and extent of mitigations across herbicides, it would also be more predictable for growers than EPA’s current approach.”
EPA is proposing to develop four pesticide use limitation areas where mitigation would be required.
The four PULAs would “represent areas where proposed runoff/erosion and spray drift mitigations would apply to reduce exposures to listed plants and those animals that have obligate relationships to plants,” the strategy said. “The four PULAs are divided by habitat type (i.e., either terrestrial or aquatic/wetland) and plant taxon (i.e., either dicots or monocots). Non-flowering plants were grouped with the monocot and dicot PULAs.”
The strategy “acknowledges that the groupings of the mitigation measures can be confusing, particularly for [vegetative filter strips].”
VFS “may occur in the field or adjacent to the field, and thus, they are listed under both the ‘in-field’ and ‘adjacent to the field’ categories. Additionally, in-field VFS can occur in contoured fields or in fields that are not planted with contours or sloped,” the strategy says.
EPA said it is “considering exempting growers from certain runoff/erosion requirements in the proposed strategy when they participate in conservation programs designed for that purpose,” such as USDA conservation programs.
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